R. v. Foster (D.), (2015) 363 Nfld. & P.E.I.R. 172 (NLTD(G))

• Judge: Mennie, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: January 28, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 363 Nfld. & P.E.I.R. 172 (NLTD(G))

R. v. Foster (D.) (2015), 363 Nfld. & P.E.I.R. 172 (NLTD(G));

    1129 A.P.R. 172

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MR.003

Daniel Foster v. Her Majesty the Queen

(201304G0175; 2015 NLTD(G) 26)

Indexed As: R. v. Foster (D.)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Mennie, J.

February 25, 2015.

Summary:

The accused francophone was charged with drug related offences. He elected to be tried before a Supreme Court judge with a jury. The preliminary inquiry proceeded entirely in French, with the exception of the testimony of the English speaking witnesses which was interpreted on a contemporaneous basis. The accused did not assert his right to have a trial in French within the time frames set out under s. 530 of the Criminal Code. He applied under s. 530(4) to have the pre-trial motions and trial proper conducted in French. The Crown consented to the application but did not endorse the accused's position that he could not understand English. The Crown also indicated that in determining whether the best interests of justice required the granting of the application, the court should consider the practicalities of empanelling a jury who could speak and understand French.

The Newfoundland and Labrador Supreme Court, Trial Division (General), granted the application.

Civil Rights - Topic 2947

Language - Criminal proceedings - Right to trial in either official language - The accused francophone was charged with drug related offences - He elected to be tried before a Supreme Court judge with a jury - The preliminary inquiry proceeded entirely in French, with the exception of the testimony of the English speaking witnesses which was interpreted on a contemporaneous basis - The accused did not assert his right to have a trial in French within the time frames set out under s. 530 of the Criminal Code - He applied under s. 530(4) to have the pre-trial motions and trial conducted in French - The Crown consented but did not endorse the accused's position that he could not understand English - The Crown also indicated that in determining whether the "best interests of justice" under s. 530(4) required the granting of the application, the court should consider the practicalities of empanelling a jury who could speak and understand French - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that, given the accused's circumstances, he was entitled to assert that French was his language of choice - The Crown's position that the accused could speak English was an improper consideration - The court only had to consider whether he had sufficient knowledge of French to instruct counsel and follow the proceedings, which was the case - With respect to the delay in bringing the application, this was not a situation where the trial had already commenced with English speaking participants - No evidence had been received to date - While the accused did not file his formal s. 530(4) application until November 18, 2014, he had asserted his right to have his trial in French as early as December 2013 - No additional difficulties were caused by the untimely application - Accordingly, the court allowed the application - The entire proceedings were to be conducted in French - Both the prosecutor and the presiding judge had to speak French - As two of the Crown's witnesses were unilingual English, an interpreter would be necessary to assist the witnesses and the accused - See paragraphs 20 to 28.

Criminal Law - Topic 140

General principles - Rights of accused - Language - [See Civil Rights - Topic 2947 ].

Cases Noticed:

R. v. Beaulac (J.V.), [1999] 1 S.C.R. 768; 238 N.R. 131; 121 B.C.A.C. 227; 198 W.A.C. 227; 173 D.L.R.(4th) 193, refd to. [para. 13].

R. v. Potvin (M.) (2004), 187 O.A.C. 285; 186 C.C.C.(3d) 257 (C.A.), refd to. [para. 19, footnote 2].

R. v. Sarrazin (R.) et al. (2005), 196 O.A.C. 224; 195 C.C.C.(3d) 257 (C.A.), refd to. [para. 19, footnote 2].

R. v. Dow, 2009 QCCA 478, refd to. [para. 19, footnote 2].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 530(4) [para. 12].

Counsel:

David A. Mills (agent for Nicole Poirier), Q.C., for the Crown;

Adam Baker (agent for Franco Schiro), for the accused.

This application was heard at Corner Brook, N.L., on January 28, 2015, by Mennie, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following judgment on February 25, 2015.